Category Archives: African System

African Court Decides First Case on Right to a Nationality

African Court on Human and Peoples’ Rights
Credit: AfCHPR

Last week, the African Court on Human and Peoples’ Rights (AfCHPR) published its first ruling related to the right to nationality in the case of Anudo Ochieng Anudo v. Republic of Tanzania, stating that Tanzania violated Anudo Ochieng Anudo’s right not to be arbitrarily deprived of his nationality, right not to be arbitrarily expelled, and right to be heard by a judge; in finding these violations, the Court relied on Article 15 of the Universal Declaration of Human Rights (UDHR), Article 13 of the International Covenant on Civil and Political Rights (ICCPR), and Article 7 of the ICCPR, respectively. See AfCHPR, Anudo Ochieng Anudo v. Republic of Tanzania, App. No. 012/2015, Judgment of 22 March 2018, paras. 88, 106, 117. At the age of 33, the complainant’s identity documents, issued by Tanzania, were investigated by immigration authorities and found to be based on fake documents, and the complainant was arrested, detained, beaten, and deported to Kenya, which subsequently found him to have irregular status and deported him back. See id. at paras. 4-12. The Court held that States have the burden of proof to show that the complainant does not have citizenship if the State claims the complainant’s identity documents, issued by the State, are flawed or fake. See id. at para. 80. The State failed to fulfill its burden in this case and failed to provide Anudo with an opportunity to contest his deportation. See id. at paras. 88, 106, 115. A lawyer at the Open Society Justice Initiative said the case “exposes the institutional weaknesses, discrimination, and flaws in legal frameworks on the right to nationality.” [OSJI]

The African Commission on Human and Peoples’ Rights (ACHPR) and African Committee of Experts on the Rights and Welfare of the Child (ACERWC) have previously considered the right to a nationality through Article 5 of the African Charter on Human and Peoples’ Rights (Banjul Charter), which grants the right to legal status, and under Article 6 of the African Charter on the Rights and Welfare of the Child (Children’s Charter), which grants the right to nationality. The Court, which has jurisdiction to interpret all relevant applicable human rights treaties to a case, did not consider Article 5 in its decision. Read more

African Court Holds Rwanda Violated Victoire Ingabire’s Freedom of Expression

Justice Solomy Balungi Bossa of the African Court on Human and Peoples’ Rights
Credit: ACHPR

On November 24, 2017, the African Court on Human and Peoples’ Rights (AfCHPR) held that Rwanda violated Victoire Ingabire Umuhoza’s right to freedom of opinion and expression, as well as her right to an adequate defense. See AfCHPR, Ingabire Victoire Umuhoza v. The Republic of Rwanda, App. No. 003/2014, Judgment of 24 November 2017, paras. 173(viii)-(ix). Specifically, the African Court held that Rwanda violated the African Charter on Human and Peoples’ Rights (African Charter) and the International Covenant on Civil and Political Rights (ICCPR) because the criminal conviction and sentence imposed on Ingabire for a speech that, the African Court found, did not minimize the genocide was a disproportional and unnecessary restriction on her freedom of speech; however, the Court further found that the law criminalizing the minimization of genocide may impose a legitimate restriction on the right to freedom of expression for purposes of preserving public order and national security. See id. at paras. 141, 161-163. The Court’s analysis on the right to freedom expression draws on the only other judgment from the Court to weigh on an alleged violation of that right and relies, as that previous judgment did, on comparative international human rights jurisprudence to develop the right to freedom of expression in its own case law, including to recognize that the right protects opinions that “offend, shock or disturb.” See id. at paras. 120-63; AfCHPR, Lohé Issa Konaté v. Burkina Faso, App. No. 004/2013, Judgment of 5 December 2014.

While Ingabire’s case was pending before the Court, Rwanda moved to withdrawal its declaration allowing individuals to appeal directly to the AfCHPR; while the withdrawal has gone into effect, it does not affect those cases that the Court already had jurisdiction over, including Ingabire’s case. [IJRC] See AfCHPR, Ingabire Victoire Umuhoza v. The Republic of Rwanda, App. No. 003/2014, Ruling on Jurisdiction, 5 September 2016. Read more

IJRC to Host Training for Advocates Attending African Commission Session

The International Justice Resource Center (IJRC) in collaboration with the Institute for Human Rights and Development in Africa (IHRDA) and the Initiative for Strategic Litigation in Africa (ISLA) will hold a training from 09:00 to 10:30 on October 30, 2017 at the Kairaba Hotel in Banjul, The Gambia, ahead of the 61st Ordinary Session of the African Commission of Human and People’s Rights (ACHPR). The training, which will take place at the seat of the ACHPR in Banjul, seeks to provide human rights defenders, advocates, and victims with updated tools and strategies for conducting research on sources in international human rights law, State compliance with human rights obligations, and national legislation and jurisprudence. As part of its 61st Ordinary Session, which begins on November 1, 2017, the ACHPR will celebrate its 30th anniversary; the ACHPR will use the commemoration to assess the progress of the Commission and to develop strategies for the future promotion of human rights in Africa. [ACHPR: Anniversary] IJRC invites all attendees of the 61st Ordinary Session and preceding NGO Forum to attend this training. For more information, see IJRC’s event flyer and training description.

IJRC also wishes to call attention to the recent arrest in Tanzania of ISLA executive director, Sibongile Ndashe, and 12 other advocates. These human rights defenders were arrested while participating in a workshop on planned litigation to challenge Tanzania’s restrictions on clinics and lubricants helping to stop the spread of HIV. [HRW] The police arrested the lawyers and activists for “promoting homosexuality,” a crime that reportedly does not appear on the Tanzanian criminal code; although they remained in detention, they had yet to be formally charged as of October 25, 2017. [ISLA; Daily Nation] Tanzania is among the countries that still criminalize same-sex conduct. See ILGA, Sexual Orientation Laws in the World – Criminalisation. Authorities have carried out similar arrests over the past year, as part of an intensified crackdown on the LGBT community. [AP; NewsDeeply; Guardian] IJRC has signed on to calls for their immediate release without charge, and looks forward to seeing our ISLA partners in Banjul. Read more

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